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Drug Offenders Could Face Higher Penalties Under New Guidelines

October 18, 2017June 14, 2017

Those at risk of federal drug charges could find themselves more at risk of prosecution and higher penalties, under a new directive from U.S. Attorney General Jeffrey Sessions.

NPR reports that the Department of Justice has rolled back the instructions handed down by his predecessor, who asked prosecutors not to file charges that imposed minimum mandatory penalties against non-violent drug offenders. Holder had explained that such sentencing guidelines strip both judges and prosecutors of much discretion regarding the length of the sentence upon conviction.

Further, the harsher sentences tax the already burdened federal prison system, disproportionately harm minority communities and aren't an effective in lowering recidivism rates. Sessions disagrees with this view, and argues that the directive "handcuffs" prosecutors, who don't need to be "micromanaged from Washington."

Columbia defense lawyers recognize these changes won't affect state-level prosecutions, South Carolina has historically taken a more conservative stance when it comes to minimum mandatory sentencing.

S.C. Code Ann. § 44-53-370 holds that manufacture, distribution, purchase or possession with intent to sell has a maximum penalty of 15 years, but may require a minimum mandatory five-year prison term in the event there are enhancements (i.e., a gun was involved, defendant sold to minors or within a school zone, etc.) and a minimum mandatory of 10 years in the event of a second conviction.

A bipartisan task force released in 2016 reported almost 80 percent of federal inmates convicted of drug crimes had almost no prior history. The Charles Colson Task Force on Federal Corrections recommended reducing the federal prison population by 60,000 within a decade, noting the "urgent" issue of overcrowding. The task force noted that sending fewer people to prison for drug offenses (or reducing lengths of stay for these offenses by 50 percent) would reduce the federal prison population by about 18 percent.

It's not clear the exact impact the new directive will have, but federal prosecutors will have to get approval from a superior if they wish to seek an exception and pursue lesser charges for low-level offenses.

States, meanwhile, are responsible for collectively incarcerating the majority of people imprisoned in the U.S. - 1.4 million as of 2015. The South Carolina Department of Corrections reports there are more than 20,000 prisoners in this state.

Sentencing Guidelines vs. Lower Admissions

Although much attention is paid to sentencing guidelines, Holder's approach was somewhat novel in that it advocated for reduction of actual admissions to prison. South Carolina itself has had some success with this approach, which has been carried out via drug diversion programs. As explained by the Fifth Judicial Circuit Solicitor's Office (which oversee prosecutions in Richland County and Kershaw County), the Adult Drug Court Treatment Program is a joint project that involves not just its own office but the City of Columbia, its police department, the Richland County government, public defender's office and sheriff's office. Drug Court is a supervised, intensive, outpatient drug treatment program that is highly structured, consists of at least 12 months of treatment and allows individuals who participate to have their cases discharged or their charges expunged upon successful completion of the program.

There are stringent requirements as to who can apply for Drug Court, but there is no question it has led to a reduction of recidivism and has resulted in overall better outcomes for a number of offenders and communities.

Entry into these programs isn't a given, and it generally isn't allowed for those facing felony drug charges, though there could be some exceptions. Having an experienced drug crime defense attorney in Columbia to help advocate on your behalf is often the best way to reduce your chances of a drug conviction or long sentence.